Opinion
As Modified April 27, 1967.
Rehearing Denied May 15, 1967.
Hearing Granted June 14, 1967.
Irell & Manella, Charles H. Phillips, Richard H. Borow and J. Gordon Hansen, Los Angeles, for appellants.
John R. Allport, Los Angeles, for respondent.
LILLIE, Associate Justice.
In this wrongful death action resulting from an automobile accident in Missouri, plaintiffs appeal from that portion of the judgment, made and entered on stipulated facts, which fixed the amount of recovery in the sum of $25,000, the maximum permitted under Missouri law. The sole question for determination is whether the right to recovery in negligence actions is still governed by the lex loci (Missouri) and not by the lex fori (California). In 1932 it was so held by a unanimous court in Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264, the decision declaring that "It is the settled law in the United States that an action in tort is governed by the law of the jurisdiction where the tort was committed, and, as it is a transitory action, it may be maintained in any jurisdiction where the defendant may be found." (P. 366, 10 P.2d p. 65.) At the time of the accident here involved, defendant Purcell was a resident of California and had been such for many years prior thereto; plaintiffs-survivors of the accident, then residents of Ohio (as were the non-survivors), have since established residence in this state. In 1958 the rule above quoted was followed in Victor v. Sperry, 163 Cal.App.2d 518, 329 P.2d 728, arising out of an automobile accident in Mexico and involving parties all of whom were California residents; limitations imposed by Mexican law on the recovery of damages were held enforceable by the trial court, and the appellate court agreed. A petition for hearing was thereafter denied by the Supreme Court. Still later (in 1965) in Marquis v. St. Louis-San Francisco Ry. Co., 234 Cal.App.2d 335, 44 Cal.Rptr. 367, it was observed (albeit by way of dictum but citing Victor) that "the preponderance of authority recognizes the rule that in negligence actions the law of Wilson v. Lockheed Aircraft Corp.,
Remaining counts of the complaint related to personal injuries (as well as property damage) sustained by certain plaintiffs. Portions of the judgment, from which no appeal has been taken, made provision for the recovery of damages therein sought.
Citing recent decisions in other jurisdictions, several law writers, the tentative draft of Restatement of Conflicts of Law, 2d Edition (which assertedly is at variance with the Restatement's original position on the problem here) and certain textual authorities, plaintiffs contend that the once firmly established lex loci rule has gradually eroded to the point where it is no longer the law--at least in jurisdictions other than ours. The rule of the decisions and other authorities relied on is rested upon the proposition that in personal injury and wrongful death actions the local law of the state where the injury occurred determines the rights and liabilities of the parties unless some other state has a more significant relationship with the occurrence and the parties, or as plaintiffs put it, a greater governmental interest in the resolution of the problem, in which event the law of the latter state will govern. As for California, it is argued that the rule of lex loci has been impliedly overruled by our Supreme Court in Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162, Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218, and Bernkrant v. Fowler, 55 Cal.2d 588, 12 Cal.Rptr. 266, 360 P.2d 906. In all three cases, according to plaintiffs, the court had to choose between the law of California and that of another state; it chose the former because California had a greater governmental interest in the issue to be resolved. Although none was a strict negligence case, as is ours, plaintiffs nevertheless assert that each applied the correct conflict of law rule which likewise should be applied in non-contract cases.
In Grant, where the accident occurred in Arizona and involved California residents, the court allowed survival of the action against the estate of one who had died in the accident although Arizona did not provide for such survival. In Emery, the accident took place in Idaho and California residents were involved; the question arose as to whether several children could sue their father and brother, and the court applied California law to the problem. Bernkrant dealt with the applicability of the statute of frauds in an estate contract action; the court chose the California and not the Nevada statute.
The above argument, extensively and ably presented, accords recognition to the fact that both Loranger and Victor must be disapproved if it is to prevail in this proceeding. As for the first of the above cases, we are bound as an intermediate appellate court by the rule there followed (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937); with respect to Victor, the denial of a hearing by the Supreme Court similarly binds us if the same arguments were there presented and presumably found unconvincing. (Barry v. Dept. of Public Works, 199 Cal.App.2d 359, 360, 18 Cal.Rptr. 637.) As shown above, Victor is factually on all fours with our case as distinguished from Loranger which did not deal with damages but applied Oklahoma law to a guest statute problem where all the parties involved were California residents. The latter decision does, however, promulgate a principle of law which is quoted in Victor and upon which that case turned in substantial part: "It is the general rule in tort actions that the court will, if it has jurisdiction of the necessary parties and can do substantial justice between them in accordance with its own forms of procedure, enforce the foreign law, if it is not contrary to the public policy of the forum, to abstract justice, or pure morals, or injurious to the welfare of the people of the state of the forum." (Supra, 215 Cal. 362, 366, 10 P.2d 63, 65.) Adopting this approach to the problem, reinforced by a similar view
Plaintiffs call attention to the fact that Loranger is in accord with the original Restatement's position which has since given way to the innovations suggested by its successor, referred to as "Restatement II." As for Victor, they contend that such decision is not binding upon this court because, among other things, the so-called "doctrine of governmental interests" was not directly presented to the appellate court for its consideration. As noted above, however, the subject case concluded that the limitations of the Mexican law were "not contrary to the public policy of the State of California or injurious to the welfare of the people thereof." It so determined notwithstanding the citation by appellant of a Minnesota case, Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W.2d 365, which decision likewise is cited by plaintiffs with the assertion that it "amounts to a governmental interests approach to choice of law problems well in advance of the recent 'revolution' " (A.O.B. pp. 48-49); also cited by appellant Victor is an article (56 Yale L.J. 1155, 1161) which states in pertinent part that "When two or more communities are touched or affected by a factual sequence, the nexus should be considered with a view to the respective interests of the societies affected by the particular fact situation * * *." Finally, in his petition for hearing by the Supreme Court appellant Victor renewed the argument made to the District Court of Appeal that the award of damages, if limited by the Mexican law, would quickly be exhausted and resort by the victim to local welfare authorities of California for aid and assistance thereafter made necessary. In our opinion, such argument clearly invokes a "governmental interest" solution of the problem although it is not stated in so many words; certainly it points up the fact that California has a more significant relationship with the parties than the other state (Mexico) and that, incidentally, is the view of Restatement of Conflicts of Law, 2d Edition.
" § 391. Right of Action for Death. In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern."
Recapitulating, substantially the same contention was unavailingly made in Victor as is made here even though all of the parties (unlike the Reich family) were California residents at the time of the accident, thus giving California an even more significant relationship with the litigants than is found at bar. A hearing in Victor having been denied, regardless of our own feelings the judgment therein stands "as a decision of a court of last resort in this state, until and unless disapproved by [the Supreme Court] or until change of the law by legislative action." (Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d 450, 453, 54 A.L.R.2d 1137.)
It further appears that the estates of the two non-survivors are being administered in Ohio.
Nor do we believe, as claimed by plaintiffs, that both Victor and Loranger have been impliedly overruled by Grant, Emery and Bernkrant. In the first of such cases Finally, and in the alternative, we are asked by plaintiffs to reject precedential authority since slavish adherence to stare decisis would perpetuate an outmoded rule. They quote from In re Lane, 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 372 P.2d 897, wherein reference is made to Sei Fujii v. State of California, 38 Cal.2d 718, 242 P.2d 617, holding that "the authority dissipated by a later trend of decision as by a statement expressly overruling it." (P. 728, 242 P.2d p. 624.) Obedient to the mandate of Cole v. Rush, supra, 45 Cal.2d 345, 351, 289 P.2d 450, if such trend has been established and is here applicable, such disapproval should be forthcoming from the court responsible for such asserted trend.
The portion of the judgment appealed from is affirmed.
WOOD, P.J., and FOURT, J., concur.